Rules of origin in the agrifood trade
Author: Nathalie Villegas
Co-authors: Adriana Campos y Nadia Monge Contributions by Joaquín Arias and James French
Flagship Project ‘Competitiveness and sustainability of agricultural chains for food security and economic development’
September, 2017
Introduction
Rules of origin are essential to international trade.
This is due to the fact that the importation of
products generally requires that the origin of a
product be explicitly established. Defining the
origin of a product may prove to be a complex task
in a highly interdependent, globalized world,
where a significant number of countries apply
preferences or restrictions to imports based on
production patterns and value adding in the
countries of origin. The complexity involved in
defining origin is even greater when several
companies are involved in different links along the
global value chains, and when multiple factors
weigh in to precisely determine the country of
origin and its role in the production of a certain
good. Despite this complexity, governments can
establish customs rules and regulations that will
help them determine a single territory or country
of origin to which to apply tariffs, as well as
sanitary and phytosanitary restrictions, taxes or
other measures.
Within this context, it is vital for government
institutions that support agricultural trade and
agribusinesses from Member States of the World
Trade Organization (WTO) and the Inter-
American institute for Cooperation on Agriculture
(IICA)1, to improve their knowledge and technical
capacities regarding the different aspects of the
rules of origin and their implications, challenges
and opportunities for international agrifood trade.
As a result IICA, together with the WTO and the
International Trade Center (ITC), provide
technical cooperation to their member States in
order to strengthen the institutional and operative
aspects of international trade.
As part of their activities, these three institutions
pay special attention to training on issues such as
non-tariff measures, which include rules of origin.
The WTO participates as the organization that
facilitates these rules; the ITC provides technical
1 All Member States of IICA are part of the WTO, with the
exception of the Bahamas, in process of accession. 2 Through its project entitled ‘’Competitiveness and sustainability
of agricultural chains for food security and economic development’’, IICA supports the participation of the countries in forums that address trade and agriculture, as well as institutions
assistance to the business sector on multilateral
trade regulations; finally, IICA2 supports
institutional actions and policies regarding
agricultural chains and economic development of
its member States. These institutions share a
series of features that allow them to complement
each other when it comes to knowledge transfer,
providing their member countries with better
competitive opportunities in world trade.
In view of the above, on April 27th 2017, the three
institutions developed the technical forum entitled
“Rules of origin in the trade of agricultural
products’’. The purpose of this activity was to
contribute to improving the capacities of
governments and businesses to comply with the
requirements of the WTO’s Agreement on Rules
of Origin and increase their knowledge on the
current and potential implications of rules of
origin, as established in preferential
agreements.
The event in question is the basis for this
document, the purpose of which is to recapitulate
the most salient aspects discussed during this
Forum with regard to the use of rules of origin and
their possible impact on agrifood trade.
The first part of the document addresses general
aspects of the rules of origin (background, basic
concepts, their importance and use in international
trade); the second part focuses on the challenges
and opportunities for the public and private sectors
in the Americas with respect to the negotiation and
management of rules of origin.
and agribusinesses in the process of internationalization and
association with agricultural chains. For more information, visit the following link: http://www.iica.int/en/projects/competitiveness-and-sustainability-
agricultural-chains-food-security-and-economic
3
I. Rules of origin in
international agricultural
trade
This section addresses some general aspects
relating to rules of origin and their importance
for the international agricultural trade. These
issues were discussed and mentioned
repeatedly during the technical forum.
What is the most relevant background
information regarding rules of origin?
Rules of origin are non-tariff measures used to
determine where a product comes from;
however, multilateral consideration of these
rules is fairly recent.
The General Agreement on Tariffs and Trade
(GATT 1947)3 did not stipulate the specific rules
that would govern the determination of the
country of origin for goods being traded
internationally; as a result, each contracting
party was free to establish its own rules and
could apply several different standards
depending on the purpose of the regulation in
question (WTO n.d.a.). This situation prevailed
until 1994, when countries finalized the
negotiations in the Uruguay Round, including
the Agreement on Rules of Origin.
The provisions of the Agreement were the result
of three important factors; an increase in
preferential trade agreements, an increase in
discrepancies with respect to origin, and a
broader use of antidumping laws4. The
proliferation of different preferential trade
agreements in the last decades of the 20th
3 Between 1948 and 1994, the GATT established applicable regulations for a large portion of world trade, and during this time
there were periods that showed some of the highest growth rates in international trade. The 1947 GATT only considers ‘’origin marking requirements’’ in article IX. These differ from the current
concept of rules of origin. The GATT currently in place considers rules of origin in section c) of paragraph 1 of article VIII, regarding the rights and formalities for imports and exports, which
encourages the reduction and simplification of documents and a minimization of the complexity of the requirements. It also offers
century highlighted the need to harmonize rules
of origin; however, this process began in the
eighties and is still ongoing. The ministers
agreed to analyze the existing regulations, but it
was not until the Uruguay Round 5 that the topic
was discussed in depth (WTO n.d.b.).
Furthermore, it must be noted that the objective
of this legal instrument is to establish clear and
predictable guidelines that will facilitate
international trade. Although the Agreement
does not focus on harmonization rules, it does
contain temporary criteria and obligations that
countries must comply with while they agree on
an agenda that will define a framework of
precise rules to achieve harmonization.
the possibility of invoking the Agreement on Rules of origin that can be found in Annex 1.A of the GATT. 4 When a product is exported at a lower price than the one applied in the market, the product is being dumped. 5 This was the most important negotiation that ever took place,
and most likely, the most significant one in the history of humanity; during the meeting, the majority of ministers from 123 participating governments signed the Agreement at a meeting held in
Marrakesh (Morocco). The Round led to the creation of the WTO.
4
What are rules of origin?
The origin of goods is not static and can vary,
given that the world is currently trading in an
environment that includes global value chains
and fragmented production; therefore, it
becomes necessary to define rules that will help
identify said origin clearly, especially to define
and apply commercial policies such as tariff
measures (which include tariffs and tariff
quotas6, among others) and non-tariff measures
(labeling, sanitary and phytosanitary measures,
and import licenses 7).
Rules of origin are the laws, regulations and
administrative procedures that determine a
product’s country of origin8 that is, its nationality.
Therefore, a legal standard is needed to
establish the conditions that a given product
must meet in order to be considered as
originating in a certain place.
At the technical forum entitled ‘’Rules of Origin
in the Trade of Agricultural Products’’ Darlan
Martí, WTO expert, explained that these rules
allow for the differentiation of goods based on
their ‘’economic’’ nationality or the application of
different conditions, depending on the origin of
the product.
These rules apply to trade in all types of
merchandise, including agricultural products.
Although the rules are relatively simple for
certain primary goods, their application and
standardization becomes more complex as the
products undergo more transformations and
become more industrialized, and when more
commercial partners or countries intervene in
the manufacture of the final product.
6 A tariff quota is a potential limitation to export or import of a
product, which applies during a certain period of time and to a maximum volume of merchandise, after which exports or imports are exempt from paying customs tariffs or receive preferent ial
tariffs. 7 The import license procedure can be defined as the administrative procedure that requires the submission of a request
or other documentation (apart from the one required by customs)
What is the importance of rules of origin
and when are they used?
Rules of origin are important in that they
establish the ‘’nationality’’ of the products, which
in turn helps customs authorities to determine
whether said products can receive preferential
treatment when imported. Furthermore, the
country of origin is important for economic
statistics (such as the balance of trade), for the
application of tariffs or special safeguards9, for
the consumer (labeling), and even for marketing
purposes, as is the case with products that bear
the name of the place where they are produced
(see geographical indications and designations
of origin). Likewise, they help in the
identification of potential sanitary and
phytosanitary risks of certain goods, by helping
to differentiate the requirements for products to
be imported.
Therefore, ‘rules of origin are used in
international trade each time that the treatment
of an imported product varies based on the
place in which it was produced; that is, every
to the relevant administrative institution, as a precondition for
importing a product. 8 The place of origin of a product can differ from the place where it was produced. The origin may be a country, a customs territory
or a region, and may be subject to WTO rules of origin or other non-preferential trade agreements. 9 Temporary increase in an import duty to deal with an increase
in imports or a fall in prices, based on the special provisions of the Agreement on Agriculture.
5
time it becomes necessary to make a distinction
based on the country of origin’ (WTO, 2014).
Likewise, the purpose of rules of origin is also to
avoid triangulation, tariff evasion, product
smuggling, commercial rackets and
extraordinary profits from arbitration, as well as
to ensure the application of commercial
sanctions for certain countries (Sigala 2001).
What are preferential and non-
preferential rules of origin?
When importing a product, it is necessary to
identify the type of rule of origin that must be
applied; in this regard, there are two types of
rules of origin: preferential and non-preferential.
Preferential rules of origin stem from
commercial agreements signed by
governments, in which certain benefits and
obligations are applied to a certain group of
countries; for example, customs unions, free
trade zones, free trade agreements, free
economic zones and economic association
agreements, among others. These agreements
define specific requirements to determine that
products originate in these groups of countries
and can benefit from the established
advantages. In other words, these rules allow
the application of different tariffs or import
customs duties for strategic products
manufactured by the commercial partners, and
which were already the subject of negotiation in
the different commercial agreements.
On the other hand, non-preferential rules of
origin are applied for trade between the Member
Countries of the WTO, and operate under the
principle of most-favored nation (MFN). This
means that Members must apply the same
measures for all commercial partners equally,
as long as they are WTO Members. These
types of rules allow for the application of MFN
10 MFN tariffs apply equally to products for all WTO members, except when there are preferential trade agreements. This type of
tariff was defined in the lists of access to markets, negotiated by WTO Member States during the Uruguay Round and excludes
tariffs10, tariff quotas, antidumping measures,
statistics and labeling requirements, among
others, which stem from the WTO agreements
that regulate all 164 member States. These
rules determine only one country of origin (WTO
n.d.c.).
In sum, the goal of preferential rules is to verify
whether an imported product complies with the
conditions established in a commercial
agreement; non-preferential rules, on the other
hand, are meant to identify the final country of
origin.
What are the methods used to determine
the origin of products?
According to Martí (2017), different parameters
are used to define different rules of origin; these
parameters stipulate the requirements that
products must meet in order to be considered
as originating from a given country.
It must be noted that preferential rules of origin
are applied in accordance with the provisions
set forth in bilateral or regional agreements,
while the WTO’s non-preferential rules of origin
seek to determine a single country of origin.
During the technical forum, the WTO expert
pointed out that, for this type of rule, the analysis
should focus on where the last substantial
transformation took place; if the requirement is
not met, other residual or alternate rules must
be considered until a single origin can be
identified.
When applying these parameters, two
categories of products are defined depending
on how they were produced:
1. ‘’Wholly obtained’’ products: Products in
which the production (materials and
manufacturing) involve the intervention of a
single country. These include live animals
born and raised in one country, plants
preferential tariffs set forth in free trade agreements and other regimens or tariffs applied within the framework of tariff quotas
(IICA n.d.a.).
6
harvested in that territory and mining
extractions.
2. Products subject to substantial
transformation: For this classification,
sugarcane and its byproducts will be used as
an example. Different parameters can be
considered to classify them, and they may
even be combined.
– Value added rule: The determination of
origin is based on a comparison between
the value of the final product and the value
of the parts that make up said product;
local and foreign value is distinguished.
An example of this is: sugar with 60%
regional value.
– Tariff classification rule: The attribution of
origin is based on a comparison between
tariff classification (Harmonized System)
of the final good and the classification of
the parts that make up said product. Using
the same example, a change in the tariff
classification could be applied here, given
11 The number and complexity of the criteria used in a rule affec t the difficulty or ease to demonstrate the origin of a good. If the norm is difficult to comply with, it is referred to as rigid; on the other
hand, if proving its origin is a simple process, the rule is considered flexible. A complex rule may imply meeting many different criteria such as a Chapter change, a jump in tariff quota,
an exception to the change in tariff classification and value of regional content, as can be seen in this example of preferent ial
that the process of transformation of the
sugar cane results in the application of
Chapter 17 of the Harmonized System
(Sugars) instead of Chapter 12 (assorted
fruit). This may have an impact on the
origin, depending on the number of
countries or territories involved.
– Specific processes rule – territorial
approach: Based on the identification of
the territory where the specific
manufacturing processes took place. The
rule requires that said process must have
taken place only in the territories of the
signatory parties. Using the same
example, this would apply to the country
where the sugarcane juice underwent the
clarification process.
During the technical forum, other provisions and
concepts were mentioned as a complement for
designation of origin (WTO n.d.e.) and which
affect the level of flexibility or rigidity11 of the
rule:
rule in the Japan-Mexico EAA (Hermelink 2017): ‘’ A change in the subheading from 3810.10 to 3810.90 from any other chapter, except from chapter 28 to 38; or a change in the subheading
3810.10 to 3810.90 from any other subheading within chapters 28 to 38, including or not a change from any other chapter, provided there is a regional content value of not less than 50 per cent’’.
7
a) Accumulation: A system that allows the
contracting parties to use materials
originating from other parties as their own.
In other words, the inputs/processes from
third party countries are considered as
national (‘’originating’’), non-imported
(‘’non-originating’’). Each agreement has
different categories and requirements.
This provision gives flexibility to
developing countries with limited
productive capacities, because it allows
them to import materials without losing
access to commercial preferences.
b) Direct transport: The purpose of this
requirement is to ensure that imported
products arriving into the country are the
same ones that left the exporting country.
Products must be transported directly from
the territory of origin to the importing
country. In those cases where transfer
occurs, non-manipulation of the final good
must be ensured.
c) Minimum operations: This is a closed list
of operations, of minor importance to the
production of the final good, which are
considered insufficient to attribute origin,
regardless of whether they are conducted
individually or collectively. These
operations include washing, drying or
packing.
How does one prove the origin of the
goods?
The origin of the goods is proven by means of
the certificate of origin. Each preferential
agreement stipulates its own formal
requirements to prove the “nationality” of the
good being marketed. Both experts from the
WTO and those from the ITC explained during
the technical forum that in order for an exporter
to receive a tariff benefit on his products under
a specific agreement, he must use a
government certification, based on criteria for
origin that are issued by the customs
authorities.
The certificate of origin (or test of origin) is a
document that the government gives to an
exporter or importer in order to demonstrate the
country or region from which the good is
considered to originate, either because it
originated there in its entirety (vegetables,
animals, minerals) or because it underwent
substantial transformation in the production
process in order to be considered as a good
from that origin (AJR External Trade 2017).
The documented proof of origin has a limited
validity period that is established in each
agreement. During the technical forum, Ursula
Hermelink, expert in nontariff measures at the
ITC, underscored some favorable as well as
unfavorable aspects of these transactions.
Some of the advantages of obtaining a
certificate of origin for export of goods are: a) it
facilitates the exemption of tariff payment in the
external market in question; b) it meets the
requirement in the countries in question; c) it
proves the origin of the goods acquired in the
8
local market and d) meets a requirement for an
international mode of payment (letter of credit or
documentary collection).
Among the major disadvantages of the
certification process are higher production
costs, the potential for promoting a monopoly,
delays due to the time required for certification,
a lack of training in the processes for requesting
certification, staff training for carrying out
certifications and an increase in the price of the
product.
These factors should be taken into account
when a company decides to initiate a process of
international trade and join the agricultural
chains in given markets. For those
agribusinesses devoted to raw materials, the
origin can be relatively simpler to determine.
Nevertheless, the governmental requirements
relating to the certificate of origin are not the
only things that should be taken into account,
since both the public and the private sectors in
certain countries establish standards related to
other aspects, such as traceability.
How do rules of origin affect
international trade?
Rules of origin may have some impact on
international agricultural trade and related
sectors, for example, within the area of policies
and institutional frameworks, infrastructure, the
economy and finance, production and
organizational culture, among others (IICA
2017).
In turn, these standards are a determining factor
in the access of goods to markets, since they
establish the conditions for entry of a product
into a specific market. Depending on how strict
and how costly they are for the companies, they
can impact the competitiveness and existing
commercial opportunities. According to the
WTO, and some of its experts such as Huberth
Escaith, rules of origin can:
- Promote the creation of regional value
chains (Escaith 2017).
- Promote foreign and local investment when
the rules facilitate international trade.
- Affect the capacity of companies to benefit
from regional or preferential trade
agreements.
- Influence the capacity of the companies to be
integrated into value chains.
9
- Promote or discourage ties among the export
sectors and areas of national production
(WTO 2017).
Therefore, the objective of rules of origin should
be to facilitate trade. If these are too complex
and impose changes in the supply chain,
exporters and importers may experience
difficulty in complying with some provisions,
such as sanitary measures, export or import
permits and product labels, among others.
Furthermore, if the cost of demonstrating origin
is very high, the interested party will decide to
pay the MFN tariff, which is usually higher than
the preferential one. This would mean that the
rules of origin, if they are very expensive to
apply, may impede or limit the benefits derived
from the preferential relationships with other
countries.
What relationship is there between rules
of origin and sanitary and phytosanitary
measures?
During the technical forum it was pointed out
that on certain occasions, a country imports the
same product from different territories, but that
this does not mean that the requirements are
the same for all the countries, since they do not
have the same environmental, climatic or pest
conditions (Martí 2017).
The rules of origin and the Agreement on
Sanitary and Phytosanitary Measures of the
WTO12, in article 6 section 1, stipulates that
“Members shall ensure that their sanitary or
phytosanitary measures are adapted to the
sanitary or phytosanitary characteristics of the
area — whether all of a country, part of a
country, or all or parts of several countries —
from which the product originated and to which
the product is destined (… )” (WTO 1994).
12 It is the WTO Agreement that establishes the basic rules on
how governments can apply the measures related to food safety, the health of animals and people and the preservation of vegetables (sanitary and phytosanitary measures or SPS) (WTO
1994).
That is to say, rules of origin help the
governments to determine the sanitary and
phytosanitary requirements that the products
they import should fulfill, based on the country
or territory that claims their origin. For example,
if a country wishing to import bananas knows of
a pest that is attacking bananas from country A,
and that this pest is not present in country B, it
will probably demand less laboratory testing
from importers from country B, provided that
they are able to certify that the origin is indeed
country B.
What is the difference between rules of
origin and designations of origin?
The concepts of rules of origin and designations
of origin can be confused, since the term “origin”
is related to a physical space or territory.
However, for purposes of trade policy these
concepts differ with respect to their application.
On the one hand, the designations of origin13
are derived from geographical indications and
13 A designation of origin is the name or indication of a
geographical location, which may be a given country or region, that designates a product which, by virtue of being native to that region, and due to the production or transformation traditions of
the dwellers, has some characteristics or reputation that make it
10
are used to determine intellectual property
rights, while the rules of origin define the rights
of access to markets (tariffs, safeguards) and
other types of nontariff measures and
countervailing duties. They are also useful for
statistical purposes.
In agribusiness, white corn from Cusco,
Guatemalan rum, Malbec Luján from Cuyo and
roquefort cheese, among others, do not
determine origin as far as the customs
authorities are concerned, but the possibility
exists that the designation of origin helps to
demonstrate the origin of these products.
different from similar products from other geographical locations (Industry and Trade Authority of Colombia 2013).
II. Challenges related to rules
of origin for the public and
private sectors
This section presents some of the challenges
facing the public sector in the negotiation and
administration of rules of origin, as well as those
which the business sector faces in applying and
complying with the standards for international
business, especially with respect to agricultural
food products.
What are some challenges for the public
sector with regard to rules of origin?
Those responsible for adequate compliance
with the rules of origin face the challenge of
applying many standards, as well as
administering the various certifications of origin
and verification systems. This is due to the fact
that countries have many trade agreements and
because rules of origin are also related to other
commitments with respect to sanitary
measures, intellectual property, duties and fees,
and trade facilitation, among others.
In the area of agriculture, the challenge of
governments is to ensure that the rules of origin
facilitate, rather than halt, the international
development of agribusinesses, as well as
provide the structural conditions (institutions for
certification and documentation, verification
technology) and rural capabilities (of authorities
and companies) to ensure the efficient
administration of rules of origin. Based on a
survey administered by the ITC to exporting
companies from 30 European14 countries,
producers or traders are often far away from the
government agencies to which they need to
present documents, do analysis and other
procedures. This reality is also evident in
14 The survey on nontariff measures was conducted between 2010 and 2016. The data from the survey can be consulted in NTM Surveys of the ITC, available at http:/ntmsurvey.intracen.org/home.
11
countries in Latin America and the Caribbean,
where there is a large number of businesses
that are spread out across the rural territories
that are faced with a lack of physical
infrastructure and communication.
Additionally, when governments negotiate rules
of origin they are faced with other important
challenges such as how to ensure that the
objectives of the rules are legitimate; for
example, promoting general economic
development or health protection, as well as
knowing the productive sector and taking the
conditions of the country into account —
infrastructure, capabilities — and the
investment that the State should make in order
to take advantage of trade benefits. This
challenge not only applies to negotiations on
origin, but also to other tariff measures such as
sanitary and phytosanitary measures, border
measures, technical barriers to trade, etc. (IICA
2017; OMC n.d.d.) .
At the institutional level, governments need to
not only strengthen the capacities and
knowledge of staff supporting the agricultural
sector in this area, but also improve national
legislation, conditions for application and
coordination between the institutions involved.
Within this context, it is important to understand
that the rules of origin depend on the political
interests of the countries; as a result, the work
of the WTO is important because it provides a
global legal framework for facilitating trade and
analyzing the non-preferential rules of origin,
since all preferential rules are the result of
exclusively agreed-upon agreements that go
beyond the provisions in the Agreement on
Rules of Origin of the WTO (Arias 2017).
Do the rules of origin create challenges
for companies?
During negotiations and application of the rules
of origin, the needs of the private sector should
be taken into account. Although the
governments negotiate and administer the rules
of the agreements, it is the companies that
implement them and better understand their
limitations and benefits.
As mentioned earlier, when the requirements for
demonstrating the origin of a product are highly
restrictive, difficult to apply and onerous, the
possibilities of reaping the benefits of a
potentially beneficial market are reduced.
At the end of the technical forum, the experts
concluded that greater flexibility in the rules of
origin can promote the competitiveness of local
or regional products, by making companies
select inputs from different locations around the
world. Additionally, they can promote local
industries, encourage the creation of regional
supply chains and value-added, and promote
regional integration.
Roughly speaking, the flexibility or rigidity of a
rule of origin can represent for the companies a
saving or a higher cost in order to trade in a
product, which affects its competitiveness
(Hermelink 2017).
According to the ITC, it is important to recognize
the existence of drawbacks so that both
12
exporters and importers can comply with or take
advantage of the rules of origin. The main
difficulties reported15 by exporters are the three
highlighted below:
1. The cost of obtaining a certificate of origin
that allows them to access a preferential
market, particularly the bureaucratic
difficulties that are time consuming.
2. The conflict between theory and practice in
defining what is really applicable based on
what is established in the rule, since various
technical barriers and language problems
impede comprehension of the requirements,
many of which, according to the
entrepreneurs, are unnecessary and make
the process inefficient.
3. The existence of multiple and strict
requirements to determine the origin of a
product, which may even turn out to be
mutually exclusive between trade
agreements.
According to Hermelink (2017), those three
difficulties help to determine the specific needs
for technical training of the micro, small and
medium entrepreneurs within the countries of
the Americas in the topic of rules of origin.
Therefore, they must be provided with
information and instruction in this regard so that
they can fully understand these rules and thus
benefit from the trade agreements signed by
their respective countries, and so that
development of agribusiness and trade can
benefit from the application of these standards.
15 The survey on nontariff measures was conducted
between 2010 and 2016. The data from the survey can be consulted in NTM Surveys of the
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